Let’s “look” at the TPP

Hey big news today! And it has brought yours truly out of hiding. So it looks like the Trans-Pacific Partnership (TPP) is a go! What’s the TPP? Damned if I know, because I’ve never seen the TPP agreement. Well, no one has ever seen it! So why is your humble blogger talking about it? A couple of lines on a government website have me perturbed. Let’s find out which ones.

First we need to take a step back. 12 countries, including Canada, have this morning come to a tentative agreement on the TPP. The TPP will create a trade zone with all sorts of harmonized rules. Over five years, the leaders of the 12 countries around the Pacific have been negotiating to come to an agreement. And these aren’t rinky dinky countries! The USA, Japan, Canada, Australia, and more. The New York Times calls it:

the largest regional trade accord in history, a potentially precedent-setting model for global commerce and worker standards that would tie together 40 percent of the world’s economy

Hey that’s pretty good! Trade is good! Right? RIGHT?

Well, as any number of people will tell you, the problem is that these were secret negotiations. No one knew what was being negotiated. And now, we have an agreement where no one (except for some negotiators and government officials) have even seen the text of the agreement. Want to know what the details of the agreement are? Tough! Now, presumably this will have to be ratified by some future Canadian government, so the deal’s text and details will have to be made public sooner or later. So why am I perturbed?

The Canadian government just published a “technical summary” of the TPP agreement. Sort of a highlights package. You can see on that list the breadth of the agreement, which summarizes the “chapters” of the agreement. Labour! Environment! Financial services! Textiles! (huh?) E-commerce! (that sounds good).

Besides the e-commerce chapter page (which is so vague who the fuck knows what it really is), I jumped to look at two pages – Telecommunications and Intellectual Property. Those are sort of my fields of expertise you know. Again, the telecom page is full of vague statements about networks and stuff that really mean nothing. There is some really vague statement about international roaming, which is something I guess. But will it reduce my roaming costs when I go to the US? Unlikely! But again, we can’t judge without seeing the text.

Now, the text of the IP chapter was leaked by Wikileaks last year. So we maybe have seen some sort of version of the text of what was just agreed to. The Electronic Frontier Foundation (EFF) summarized what was in that leak, and it’s, uh, not so good. Let’s selectively cut and paste and make two important bullet points:

TPP would force the adoption of the US DMCA Internet intermediaries copyright safe harbor regime in its entirety

Adopt criminal sanctions for copyright infringement that is done without a commercial motivation

These are both, shall we say, bad. Now are they true? Is this in the final version that was just agreed to? Who knows! Like I said, no one has seen what was just agreed to. But the summary IP page that the government just posted has some clues, and that is what has me perturbed. It says:

Includes appropriate remedies to combat trade in counterfeit and pirated goods

What are the “appropriate remedies”? Could be jail time for that pirated video! More:

Includes comprehensive civil procedures and remedies available to rights holders

This could be bad! The “civil procedures” may in fact be DMCA-like notice and takedown. Understand that the “notice and takedown” is one side of the coin – safe harbour (first bullet point above, though spelled the American way, eh?) is the other. Safe harbour means that an internet intermediary (like Google, or YouTube, or any hosting company, or basically anyone that does not create content themselves) are “safe” from being sued for copyright infringement if they comply with the notice and takedown regime. And notice and takedown is harsh – a rights holder makes the claim that their copyrights are infringed by unauthorized posting of copyrighted material, then the intermediary must “take it down”, no questions asked, no proof required, no judicial procedure included. It’s so harsh, it’s why Canada adopted “notice and notice” instead (which has its own problems of course) when we updated the Copyright Act.

But, but, we’re in Canada you say. Surely, the American rights holders will not have any say over what goes on here! Oh, hello, what’s this last clue on that IP page?

Enables right holders to seek redress where their rights have been violated across the TPP region

Ruh roh. The American rights holders will soon be here. I, for one, welcome our American media superconglomerate overlords. I’d like to remind them that as a trusted Canadian internet law expert, I can be helpful in rounding up others to toil in their underground copyright-monitoring caves.

We should all be very skeptical about the TPP agreement. Last year Canada signed a trade agreement with South Korea. According to the Harper gang it was supposed to be a great deal for Canada. We dropped tariffs on auto parts and autos while they dropped tariffs on Canada’s beef exports. 9 months later, Canada’s trade balance was 9 billion to the negative higher than the previous year. It seems that South Korea has blocked all of Canada’s beef exports due to the fact that we had a case of Mad Cow disease within the past decade. Can you believe it? We’ve been taken to the cleaners again.

About Me

Allen Mendelsohn is me. I am a lawyer specializing in internet law working out of Montreal, though sometimes I do it in front of the U.S. Capitol. That should tell you what you need to know about internet law in Canada. I also warp young legal minds at the Faculty of Law at McGill.